EXHIBIT 10.7.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made, effective as of the 1st day of September, 1996,
between WM. CAMERON & CO., a Georgia corporation dba XXXXXXX XXXXXX BUILDING
PRODUCTS (the "Company") and XXXXXX X. XXXX, a resident of the State of Texas
("Executive").
BACKGROUND
Executive has been employed by the Company pursuant to an Employment and
Confidentiality Agreement dated December 20, 1991 (the "Prior Agreement") as an
executive employee. The Company desires to extend the employment relationship
with Executive, and Executive desires to continue employment on the terms and
conditions set forth below. This Agreement is intended to replace and supersede
the Prior Agreement.
AGREEMENT
In consideration of the continued employment of Executive by the Company,
the premises, and the mutual agreements hereinafter set forth, the parties
agree:
1. DEFINITIONS. The following terms used herein shall have the
definitions set forth below:
(a) "Business" or "Business of the Company" means the business of
distribution of building materials.
(b) "Cause" means conduct amounting to fraud or dishonesty against
the Company; Executive's willful violation of Sections 2(a) or (b) hereof, or
any of the Company's work rules or policies or repeated absences from work
without a reasonable excuse, if the Board of Directors of the Parent notifies
Executive of such violation or absence in writing and Executive fails to cure
such violation or absenteeism within five (5) days after written notice has been
given, provided that written notice relating to such violation or absenteeism
shall only be given once as it relates to a particular manner of conduct;
intoxication with alcohol or drugs while on Company business during regular
business hours; a conviction or plea of guilty or NOLO CONTENDERE to a felony or
a crime involving dishonesty against the Company; or Executive's failure to
observe the requirements of Sections 2(c), 5 or 6 hereof.
(c) "Disability" means (i) the inability of Executive to perform the
duties of Executive's employment due to physical or emotional incapacity or
illness, where such inability is expected to be a long-continued and indefinite
duration or (ii) Executive shall be entitled to (x) disability retirement
benefits under the federal Social Security Act or (y) recover benefits under any
long-term disability plan or policy maintained by the Company. In the event of
a dispute, the determination of Disability shall be made by the Board of
Directors of the Company and shall be supported by advice of a physician
competent in the area to which such Disability relates.
(d) "Effective Date" means the date set forth above.
2. TERMS OF ENGAGEMENT; DUTIES
(a) The Company hereby employs Executive, commencing on the Effective
Date, and Executive hereby accepts employment by the Company subject to the
terms and conditions hereof. Executive is engaged initially with the title and
functions of Chairman and Chief Executive Officer of the Company and Chairman
and Chief Executive Officer of the parent company, Xxxxxxx Xxxxxx Building
Products, Inc. ("Parent"). Executive shall report to and shall perform the
duties assigned by the Board of Directors of the Company and the Parent from
time to time, and as are provided in the Bylaws of the Company and the Parent.
At all times during the term of this Agreement, the Executive shall be employed
as a senior executive of the Company with appropriate and commensurate title,
rank and status and Executive shall retain the chairman and chief executive
position of any division or unit of the Company or the Parent in the future
that contains substantially all of the assets of the Company and the Parent as
are held by the Company and the Parent on the Effective Date.
(b) Throughout the term of this Agreement, Executive shall:
(i) devote all of Executive's business effort, time,
energy, and skill (reasonable vacations and reasonable absences due to
illness excepted) to the duties assigned by the Board of Directors
of the Company and the Parent;
(ii) faithfully, loyally, and industriously perform such
duties, subject to the control and supervision of the Board of Directors
of the Company and the Parent; and
(iii) diligently follow and implement all lawful
management policies and decisions of the Company and the Parent that are
communicated to Executive.
(c) During the term of this Agreement, Executive shall not be engaged
(whether or not during normal business hours) in any other business or
professional activity, whether or not such activity is pursued for gain, profit
or other pecuniary advantage that is contrary to the provisions of Section
2(b)(i) above; provided, however, that this restriction shall not be construed
as preventing Executive from (i) investing his personal assets in businesses
which do not compete with the Company in such form or manner as will not require
any services on the part of Executive in the operation or the affairs of the
companies in which such investments are made and in which his
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participation is solely that of an investor or (ii) purchasing securities in
any corporation whose securities are regularly traded provided that such
purchase shall not result in his collectively owning beneficially at any time
five (5%) percent or more of the equity securities of any corporation engaged
in a business competitive to that of the Company.
3. COMPENSATION. In consideration of the services rendered by Executive
pursuant to this Agreement, the Company shall provide the following:
(a) A base salary of Two Hundred Seventy Five Thousand Dollars
($275,000) per annum (the "Base Salary") which Base Salary will be reviewed
periodically and may be increased by the Company from time to time. The Base
Salary shall be paid in accordance with the Company's standard payroll practices
in effect from time to time, and shall be subject to such deductions and
withholdings as are required by law or by policies of the Company.
(b) Executive shall be eligible to be considered for an annual cash
performance bonus, which may consist of an amount of up to one hundred percent
(100%) of the Base Salary in the applicable year based on the attainment of
performance objectives established by the Board of Directors of the Company and
the Parent in good faith and Executive's contributions to the attainment of
those objectives, and shall be in such amount and payable in such manner and on
such terms as are determined by the Board of Directors of the Company and the
Parent in good faith. Nothing contained in this subsection (b) shall obligate
the Company to pay a bonus to Executive, unless the Board of Directors of the
Company and the Parent determines to award such a bonus to Executive.
(c) The right to participate in any insurance plans maintained by the
Company from time to time to the extent that Executive's position, tenure,
salary, age, health and other qualifications make him eligible to participate,
and such other fringe benefits as are provided to the other senior management
employees of the Company, provided that the Company shall not be required to
adopt or continue any insurance plans or fringe benefits.
(d) Reimbursement for all reasonable business expenses incurred by
Executive in connection with the Business of the Company (including car
allowance) subject to compliance with the expense reimbursement policies
established by the Company and in sufficient detail to comply with Internal
Revenue Service Regulations.
(e) A grant, as of the Effective Date, of 200,000 options to purchase
Common Stock of the Parent issued under the existing Stock Incentive Plans of
the Parent. The exercise price of such options shall be $12.25, the Fair Market
Value as of the date hereof. Such options will have a term of ten years and
will vest in one-fifth increments over five years from the date of grant.
(f) Executive shall be eligible for an additional grant of options to
purchase Common Stock of the Parent as of the end of the term hereof in such
amount as shall be determined by the Board of Directors of the Parent.
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(g) The remuneration and benefits set forth in this Section 3 shall
be the only compensation payable to Executive with respect to his employment
hereunder, and Executive shall not be entitled to receive any compensation in
addition to that set forth in this Section 3 for any services rendered by him in
any capacity to the Company or any affiliated corporation unless agreed to in
writing by the Company or such affiliated corporation.
4. TERM AND TERMINATION OF THIS AGREEMENT. The term of employment of
Executive pursuant to this Agreement shall commence on the Effective Date and
shall continue for a term of three (3) years, or until sooner terminated as
provided herein.
(a) Executive's employment hereunder may be terminated:
(i) Upon the death or Disability of Executive;
(ii) By the Company, immediately for Cause;
(iii) By Executive upon ninety (90) days prior written
notice to the Company;
(iv) By Company immediately upon written notice to
Executive; or
(v) By mutual agreement between Executive and the Company.
(b) Except as set forth below, upon termination of Executive's
employment hereunder pursuant to this Section 4, the Company shall have no
further obligation to Executive or his personal representative with respect to
remuneration due under this Agreement, except for Base Salary earned but unpaid
at date of termination, provided however, Executive's covenants in Sections 5
and 6 of this Agreement shall survive the termination of Executive's employment
hereunder. Upon termination of Executive's employment hereunder pursuant to
Section 4(a)(iv) above, Executive shall be entitled to receive severance pay
(the "Severance Amount") consisting of an amount equal to (i) the then current
annualized Base Salary plus (ii) the average of the annual bonus actually paid
to or accrued for Executive hereunder for the two (2) most recent fiscal years
of the Company ending prior to the date of termination, paid together over a
twelve (12) month period in accordance with the Company's standard payroll
practices in effect at the time of termination. If Executive elects to continue
coverage on the Company's health plan upon termination of employment pursuant to
Section 4(a)(iv) above, the Company will pay the monthly premiums for the first
twelve months of the eligible continuation period or until Executive obtains
employment and has satisfied any necessary waiting periods under the new
employer's health plan, whichever is sooner. It is understood that Executive's
coverage under the Company's disability, accidental death or dismemberment and
group life insurance plans cease as of the date of termination. If Executive
fails to observe the requirements of Sections 5 or 6 hereof, then the Company
shall have no obligation to pay any portion of the Severance Amount remaining
unpaid to Executive.
5. OWNERSHIP, NON-DISCLOSURE, AND NON-USE OF TRADE SECRETS.
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(a) The following terms used in this Section 5 shall have the
definitions set forth below:
(i) "Excluded Information" means any data or information
that is a Trade Secret hereunder (1) that has been voluntarily
disclosed to the public by the Company or has become generally known
to the public (except where such public disclosure has been made by
or through the Executive or by a third person or entity with the
knowledge of the Executive without authorization by the Company);
(2) that has been independently developed and disclosed by parties
other than the Executive or the Company to the Executive or to the
public generally without a breach of any obligation of
confidentiality by any such person running directly or indirectly to
the Company; or (3) that otherwise enters the public domain through
lawful means.
(ii) "Trade Secrets" means information which derives
economic value, actual or potential, from not being generally known
and not being readily ascertainable to other persons who can obtain
economic value from its disclosure or use and which is the subject
of efforts that are reasonable under the circumstances to maintain
its secrecy or confidentiality. Trade Secrets may include either
technical or non-technical data, including without limitation, (1)
any useful process, machine, chemical formula, composition of
matter, or other device which (A) is new or which Executive has a
reasonable basis to believe may be new, (B) is being used or studied
by the Company and is not described in a printed patent or in any
literature already published and distributed externally by the
Company, and (C) is not readily ascertainable from inspection of a
product of the Company; (2) any engineering, technical, or product
specifications including those of features used in any current
product of the Company or to be used, or the use of which is
contemplated, in a future product of the Company; (3) any
application, operating system, communication system, or other
computer software (whether in source or object code) and all flow
charts, algorithms, coding sheets, routines, subroutines,
compilers, assemblers, design concepts, test data, documentation, or
manuals related thereto, whether or not copyrighted, patented or
patentable, related to or used in the Business of the Company; or
(4) information concerning the customers, suppliers, products,
pricing strategies of the Company, personnel assignments and
policies of the Company, or matters concerning the financial affairs
and management of the Company or any parent, subsidiary, or
affiliate of the Company; provided however, that Trade Secrets shall
not include any Excluded Information.
(b) Executive acknowledges and agrees that all Trade Secrets, and all
physical embodiments thereof, are confidential to and shall be and remain the
sole and exclusive property of the Company and that any Trade Secrets produced
by the Executive during the period of Executive's employment by the Company
shall be considered "work for hire" as such term is defined in 17 U.S.C. Section
101, the ownership and copyright of which shall be vested solely in the Company.
Executive agrees (i) immediately to disclose to the Company all Trade Secrets
developed in whole or part by Executive during the term of Executive's's
employment by the Company, and (ii) at the request and expense of the Company,
to do all things and sign all documents or instruments reasonably necessary in
the opinion of the Company to eliminate any ambiguity as to the rights of the
Company in such Trade Secrets including, without limitation, providing to the
Company Executive's full cooperation
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in any litigation or other proceeding to establish, protect, or obtain such
rights. Upon request by the Company, and in any event upon termination of
Executive's employment by the Company for any reason, Executive shall promptly
deliver to the Company all property belonging to the Company including, without
limitation, all Trade Secrets (and all embodiments thereof) then in Executive's
custody, control or possession.
(c) Executive agrees that all Trade Secrets of the Company received
or developed by Executive as a result of Executive's employment with the Company
will be held in trust and strictest confidence, that Executive will protect such
Trade Secrets from disclosure, and that Executive will make no use of such Trade
Secrets, except in connection with Executive's employment hereunder, without the
Company's prior written consent. The obligations of confidentiality contained
in this Agreement will apply during Executive's employment by the Company and
(i) with respect to all Trade Secrets consisting of scientific or technical
data, at any and all times after expiration or termination (for whatever reason)
of such employment; and (ii) with respect to all other Trade Secrets, for a
period of two (2) years after such expiration or termination, unless a longer
period of protection is provided by law.
6. NONCOMPETE; NONSOLICITATION COVENANTS.
(a) The following terms used in this Section 6 shall have the
definitions set forth below:
(i) "Affiliate" means any person or entity directly or
indirectly controlling, controlled by, or under common control with
Executive. As used herein, the word "control" means the power to direct
the management and affairs of a person.
(ii) "Area" means all of North America.
(iii) "Competing Enterprise" means any person or any
business organization of whatever form, engaged directly or indirectly
within the Area in the Business of the Company.
(b) Executive covenants that Executive shall, during the term of this
Agreement and for a period of one (1) year following the termination, for
whatever reason, of Executive's employment by the Company, observe the following
separate and independent covenants:
(i) Neither Executive nor any Affiliate will, without the
prior written consent of the Company, within the Area, either directly or
indirectly, (A) become financially interested in a Competing Enterprise
(other than as a holder of less than five percent of the outstanding voting
securities of any entity whose voting securities are listed on a national
securities exchange or quoted by the National Association of Securities
Dealers, Inc. automated quotation system), or (B) engage in or be employed
by any Competing Enterprise as a consultant, officer, director, or
executive or managerial employee.
(ii) Neither Executive nor any Affiliate will, without the
prior
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written consent of the Company, either directly or indirectly, on
Executive's own behalf or in the service or on behalf of others, solicit,
divert, or appropriate, or attempt to solicit, divert, or appropriate, to
any Competing Enterprise within the Area, any person or entity whose account
with the Company was serviced by or under Executive's direction or
supervision during the term of this Agreement.
(iii) Neither Executive nor any Affiliate will, without the
Company's prior written consent, either directly or indirectly, on
Executive's own behalf or in the service or on behalf of others, solicit,
divert, or hire away, or attempt to solicit, divert, or hire away, to any
Competing Enterprise, any person employed by the Company, whether or not
such employee is a full-time or a temporary employee of the Company and
whether or not such employment is pursuant to written agreement and whether
or not such employment is at will.
7. REMEDIES. Executive acknowledges and agrees that the Company is
engaged in the Business of the Company in and throughout the Area, and that by
virtue of the training, duties, and responsibilities attendant with Executive's
employment by the Company and the special knowledge of the business and
operations of the Company that Executive will have as a consequence of
Executive's employment by the Company, great loss and irreparable damage would
be suffered by the Company if the Executive should breach or violate any of the
terms or provisions of the covenants and agreements set forth herein. Executive
further acknowledges and agrees that each such covenant and agreement is
reasonably necessary to protect and preserve the interest of the Company.
Therefore, in addition to all the remedies provided at law or in equity,
Executive agrees and consents that the Company shall be entitled to a temporary
restraining order and a permanent injunction to prevent a breach or contemplated
breach of any of the covenants or agreements of Executive contained herein. The
existence of any claim, demand, action or cause of action of Executive against
the Company shall not constitute a defense to the enforcement by the Company of
any of the covenants or agreements herein whether predicated upon this Agreement
or otherwise, and shall not constitute a defense to the enforcement by the
Company of any of its rights hereunder.
8. GENERAL PROVISIONS.
(a) In the event that any one or more of the provisions, or parts of
any provisions, contained in the Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect by a court of competent
jurisdiction, the same shall not invalidate or otherwise affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
Specifically, but without limiting the foregoing in any way, each of the
covenants of the parties to this Agreement contained herein shall be deemed and
shall be construed as a separate and independent covenant and should any part or
provision of any of such covenants be held or declared invalid by any court of
competent jurisdiction, such invalidity shall in no way render invalid or
unenforceable any other part or provision thereof or any other covenant of the
parties not held or declared invalid.
(b) This Agreement and the rights and obligations of the Company
hereunder may
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be assigned by the Company to any subsidiary of or successor to the Company,
and shall inure to the benefit of, shall be binding upon, and shall be
enforceable by any such assignee, provided that any such assignee shall agree
to assume and be bound by this Agreement. This Agreement and the rights and
obligations of Executive hereunder may not be assigned by Executive.
(c) The waiver by the Company of any breach of this Agreement by
Executive shall not be effective unless in writing, and no such waiver shall
operate or be construed as a waiver of the same or another breach on a
subsequent occasion.
(d) This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of Texas.
The parties agree that any appropriate state court located in Dallas County,
Texas or any Federal Court located in Dallas, Texas shall have exclusive
jurisdiction of any case or controversy arising under or in connection with this
Agreement and shall be a proper forum in which to adjudicate such case or
controversy. The parties consent to the jurisdiction of such courts.
(e) This Agreement embodies the entire agreement of the parties
relating to the employment of Executive by the Company. No amendment or
modification of this Agreement shall be valid or binding upon the Company or
Executive unless made in writing and signed by the parties. All prior
understandings and agreements relating to the employment of Executive by the
Company (including the Prior Agreement) are hereby expressly terminated and
superseded.
(f) Any notice, request, demand, or other communication required to
be given hereunder shall be made in writing and shall be deemed to have been
fully given if personally delivered or if mailed by United States Mail,
certified or registered, postage prepaid, to the parties at the following
addresses (or at such other addresses as shall be given in writing by any party
to the other party hereto):
If to Executive:
Xxxxxx X. Xxxx
000 Xxxxx Xxxxx Xxxxx
XxXxxxxx, XX 00000
If to Company:
Wm. Cameron & Co. dba Xxxxxxx Xxxxxx Building Products
00000 Xxxxx Xxxx
Xxxxxx, XX 00000
(g) This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original, and it shall not be necessary for
the same counterpart of this agreement be signed by all of the undersigned in
order for the agreements set forth herein to be binding upon all of the
undersigned in accordance with the terms hereof.
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IN WITNESS WHEREOF, the Company and Executive have each executed and
delivered this Agreement as of the date first above written.
COMPANY:
WM. CAMERON & CO. dba
Xxxxxxx Xxxxxx Building Products
By: /s/ XXXX X. XXXXX
-----------------------------------------------
Xxxx X. Xxxxx, Vice President & General Counsel
EXECUTIVE:
/s/ XXXXXX X. XXXX
-----------------------------------------------
Xxxxxx X. Xxxx
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